Posted
by
timothyon Wednesday November 19, 2003 @02:31PM
from the and-son-light-a-match dept.

shystershep writes "Apparently attacking one Unix-like OS isn't enough. According to Darl McBride, SCO has plans to target BSD. "The more yarn you pull out the more you see," according to McBride. They're a little preoccupied with the IBM litigation right now, though, so "we probably won't file any suits against BSD until sometime in the first half of next year." Hmmm. I can't imagine why SCO executives feel that they need to hire bodyguards." How to get at the *BSDs? vireo writes "In this Newsforge story, we learn that Boies, Schiller & Flexner will directly attack the 1994 AT&T/BSD settlement." Read on below for another handful of updates on the giant SCO lawsuit frenzy.

Iaitos points to this rather stiffly-worded notice from Novell (on their site) regarding the non-compete agreement SCO claims would taint Novell's acquisition of SUSE:

PROVO, Utah Nov. 18, 2003: Novell has seen the November 18 InfoWorld article in which SCO CEO Darl McBride refers to a supposed non-compete agreement between Novell and SCO. Mr. McBride's characterization of the agreements between Novell and SCO is inaccurate. There is no non-compete provision in those contracts, and the pending acquisition of SUSE LINUX does not violate any agreement between Novell and SCO.

Novell has received no formal communication from SCO on this particular issue. Novell understands its rights under the contracts very well, and will respond in due course should SCO choose to formally pursue this issue."

slavitos points to a ZDNet article covering the same ground, writing:
"A characteristic SCO twist in the story:
"McBride added that lawsuits likely will be preceded and possibly prevented by communications offering businesses an opportunity to get right with SCO. "We'll be communicating with users what our expectations are," he said.". Oh, that's helpful, Darl - and no, we didn't really expect you to be any more specific."

If your lips aren't yet too tired, ansak writes "PJ has done it again -- okay, "co-ordinated it" would be the better phrase. The transcript of SCOG's conference call is now available (and in danger of being slashdotted without slashdot's help, even!).#include <std.thanks.to.volunteers.h>"

Another legal theory being thrown about is that SCO's lawsuit (the one against IBM, that is) all leads back to Sequent. Petrol writes "The Inquirer has a story
about SCO's action against IBM. 'Sources close to the action describe a trail of code that might well be the target of SCO's ire against IBM and the Linux community.'"

When do SCOs actions, threats to sue linux customers, and harrassment of linux customers reach the point where they become some kind of illegal thing? I'm sure there's some kind of line between marketing to your competitors customers and harassing them.

If the harrassment/lawsuit threats are already covered under the lanham act suit redhat/ibm (?) is bringing, then what line does SCO have to cross before redhat/IBM can start asking for injunctions, as opposed to having to wait until their lawsuits start?

And doesn't the SCO case verbal arguments begin on december 6? Once that happens, how long will it take for SCO's ball of yarn to fall apart?

SCO hasn't put out a viable product in years, and frankly neither had Caldera. To me this just seems like SCO is using the legal system as it's new business model. Can't make a profit the ol' fashioned way? Now you can sue yourself to a profit. What a bunch of ass clowns.

Going after the BSD settlement, they hope to reverse it. If they can do that, then some of the laughable examples of infringing code may suddenly become legally enforcable. What it tells the rest of the world is that they are running out of claims, and need to work on finding something to back themselves up. I think it means they've realised that the racketeering isn't working. Noboby is going to buy them, marque coporations aren't going to buy their licenses. So they need to either implode or find a new angle.

One thing that SCO is obviously ignoring is one rather simple fact: You have to be absolutely, completely, utterly INSANE to sue a university; for any reason. I have yet to see anyone do it successfully. AT&T couldn't do it 9 years ago, so what makes SCO think they can do it now? AT&T had a MUCH better table to stand on.

There are plenty of examples of stupidity in suing a university.

How 'bout the 'copy-protection' that could be foiled by holding down the 'shift' key? (Sued a student of Princeton University; charges dropped after the University stepped in on the student's behalf)

There are THOUSANDS of cases a year where people sue medical students; just about every one ends up in the student's favor, because the university steps in. You can't get new doctors if you can't train new students; and part of the learning process is making mistakes.

And BSD is still techinically property of the Regents of the University of California.

Go ahead; sue them. Nobody looks kindly on a mad Chihuahua biting everyone that won't give it the world. Espescially when it starts nipping at schools. SCO has once again proven that they have nothing.

At least I hope this kinda of case does not go before a jury. Can you imagine the average smuck not smart enough to escape jury duty trying to make sense of all this? Worse trying to make sense of it while getting the info from two different camps?

If it is trial by jury we better hope for a really smart and level headed judge who can properly instruct the jury.

Can this even all go before a single court? If they are really going to sue IBM + Novell + Linux customer + BSD + Little fluffy kittens, we might end up with a dozen trials. That is not counting the appeals.

Oh well at least now with BSD in the firing line as well we will see an end to the posts claiming BSD is safe because of some previous case. When a mad man is loose with a gun, noone is safe.

The company was headed down the tubes, so in order to pump up the stock price enough to allow for some breathing room. The problem for McBride is that SCO still hasn't found a way to make money the old-fashioned way. So what was initially a tactic to hold their ground has morphed into their strategy for long-term survival.

But they've overreached. In fact, they've managed to do what even Microsoft has been unable to do so far; they are directly threatening almost everyone in the *NIX world, which will only bring the disparate camps together. There's big money behind Linux, and there are a lot of companies interested in keeping BSD alive as well.

The mouse that roared is going to get stepped on eventually. Whether they can make enough money in the mean time in order to carry on after their legal shenanegans are put to a stop is the real question. If they can't, I expect SCO to die quite rapidly as soon as they lose in court.

If SCO's code base is based on AT&T's code base then it would be logical that a lot of code in BSD would be found in SCO -- AT&T copied it in there originally! I seem to recall seeing some BSD copyright notices in the SCO Bootup process in past positions where I've been forced to work with SCO OSes.

Microsoft also had several BSD copyright notices in the past during boot-up. Reckon SCO will go after them, too?

In any event the BSD guys should be able to get the case dismissed immediately using the legal records from the original AT&T case. Hopefully they'd couter-sue for legal costs and time wasted.

Speaking of which, why haven't any Linux copyright holders sued SCO for copyright infringement yet? SCO obviously does not agree with the terms of the GPL and last time I checked they were still distributing the Linux kernel. It'd be great to see several hundred (or thousand) separate lawsuits filed in various states and countries...

The title of his address Tuesday night to the Computer Digital Expo at Mandalay Bay was: "There's No Free Lunch
funny, isn't that exactly what McBride is looking for?
Rather than build a viable buisness on the merits of their own product he's taken to filing lawsuit after lawsuit, each more insane than the last to drive up his stock prices in the hope that he can cash out before the perverbial house of cards comes crashing down.
I for one hope there is no free lunch here, i hope McBride and his band o' nuts aren't able to profit by slandering the hard work of the open source community.....But then again, not to many investment bankers read/.

Well, at least the BSD snobs can stop saying, "Use BSD instead because SCO has no claim over that." I think most BSD folk believed this was going to happen someday, and were just hoping that it wouldn't. SCO believes everyone owes them a cut, because no OS could exist without precious code from SVR4. I wouldn't be surprised if SCO threatens all the embedded OS makers and Microsoft before this is over.

As a side benefit, the bigger and more grandious SCO's claims become, the less believable they become, and sooner or later the press will pick up on this.

What going after BSD means is that SCO has no case unless they can blow up an agreement made between AT&T and BSD before SCO was even involved. Basically, they will need to meet the IBM/Red Hat motion that they provide offending code as a part of the discovery process. When that happens, IBM will move for dismissal because all the "IP" SCO claims will be found to be BSD covered in some way. Basically, this just confirms that the emperor has no clothes.

The thing to keep in mind through is that AT&T was appropriating BSD Unix code by removing the Regents of California copyright notice and using the code in their own Unix code. It may well be that major portions of System VR4 owes its existence to BSD.

The new angle won't work any better. The settlement also protects THEM from BSD suing for stolen BSD code. If they attack it, the holders of that copyright can sue
SCO right back.

IIRC, AT&T only settled after the judge turned down their request for a preliminary injunction because it was likely that their improper handling of the licensing had put the code into the public domain. If they open that can of worms again, chances are that they could lose the copyrights to much of Unix.

When I was a kid, and explaining to my parents that I needed a modem to call BBSs, they asked me how much it would cost. When I said most BBSs were free, run by people for fun, they didn't believe me. They said that nothing is ever free.

Now, you have all these guys out there who are extremely suspecious of how Linux works. They just don't understand how you can get something for nothing.

Then SCO comes along and confidently says what they've been expecting all along.

I'm not sure, but in an odd way, this is the first thing I've heard about SCO's strategy in a long time that makes any sense at all. I personally don't see much (if any) chance of it succeeding, but if they can revisit the AT&T/UCB suit and somehow win it, then the remainder of their claims will be significantly strengthened: Think about those code snippets they showed that were later found to date back to BSD, for instance.

If they actually want to argue that they own all UNIX-like IP -- which seems to be what they are arguing -- they have to go after BSD.
It's a Hail Mary Pass, but it's about the only chance they would have of winning anything more than a very narrowly-tailored breach of con tract lawsuit against IBM (and the prospects of ekeing out a breach-of-contract suit against IBM sure aren't the hot air that's been inflating SCO's stock price, that's for sure).

I don't mind if they go after Apple.. just one more company joining in the fun of beating SCO up.

I'm sure Apple would think differently about it. Mostly what the SCO fiasco is going to do is make a lot of noise for the press, keep a lot of court clerks busy, and move a LOT of money from computer companies to lawyers, money that could be used for product development.

Noone wants to get involved in litigation, no matter how fun it looks from the outside. It's too damned expensive.

have yet to see anyone do it successfully. AT&T couldn't do it 9 years ago, so what makes SCO think they can do it now? AT&T had a MUCH better table to stand on.

Particularly since the case has already been litigated and closed. Getting the courts to re-open a settled case is near impossible. The only claims that SCO owns are through the AT&T copyrights. If the courts allowed a losing plaintif to avoid negative judgement by selling the IP to another party there would be no way to achieve finality.

Courts tend to make finality of judgement a very high priority. Once a case is closed it is closed, the only way to reopen it is usually to show that there was something wrong with the process at the first trial, usually knowing use of false evidence, bribing a juror, judge etc.

I just do not see the courts accepting an attempt to re-open this case, particularly if the plaintif refuses to even specify what is allegedly infringing.

This looks like yet another SCO attempt to extract money through legal threats that are highly unlikely to succeed. It would be interesting to know the extent to which this type of threat would fall under insurance policies.

A settlement isn't something that can be appealed, as far as I know; and even if it could be, I'd bet certainly not by an uninvolved party.

As somebody else pointed out, SCO is USL's successor in interest to the SysV code, so they actually are an interested party in the BSD case. Beyond that, they wouldn't actually be attacking the settlement, per se. Instead they'd be attacking the behavior of the other settling party by claiming that they weren't living up to their side of the bargain.

This might actually be a vaguely clever move. The settlement in the BSD case is under seal, so an ordinary person won't actually know exactly what its terms are, and the other side isn't allowed to disclose the exact terms. That makes it a perfect FUD target. SCO is free to imply all sorts of things about the settlement so long as they don't say anthing specific. They can even say that they'd love to specify exactly what the BSDers are doing wrong but they're forbidden to by the secrecy around the settlement. Nobody can rebut them without actually spelling out the terms of the settlement, which would be illegal. It might even have been effective if SCO hadn't shown itself to be all bark and no bite by now.

The problem with Boies is that he does just what his clients tell him to do. This is good lawyerly behavior, but if you don't choose the right clients, you're the one who ends up with egg on your face. Examples of this can be seen in each of the cited cases.

For one example, consider the Florida election. There was a legitimate dispute and a genuine recount needed to be made. But Boies and company didn't want a genuine recount, they only wanted a recount of selected counties. If they would have instead argued for a statewide recount, they would have gotten it with virtually no objection from the other side. And since the vote was so freaking close, statistics would have given them 50% odds of winning the election. But instead they argued over trivialities until the clock ran out.

No - ignorant liberal. Democrats lost the recount
because every county in the state had a different
standard by which to count pregnant and dimpeled
chads.

When are you right wingers going to get over the fact that the tactics he used are the reason why he will never be anything more than your 'president'?

Actions have consequences. A person who goes to a court to stop the votes being counted can never be considered a legitimate president of a democratic country.

The problem with the right is that you all have this belief in entitlement. You think you can steal an election and are somehow entitled to be considered the legitimate winner. You think you can behave in an overtly partisan manner and then when you want to avoid criticism claim that you are entitled to the benefits of the bipartisanship that you rejected.

I am looking forward to the next appearance of the 'Mission Accomplished' banner at the Dean inaugural.

Paranoia, as a clinical diagnosis, doesn't seem likely. (For a start, after launching a billion unjustifiable lawsuits, he has every right to be scared of everyone.)

Now, there are real clinical diagnoses that do fit McBride's behaviour, but there's not enough evidence to back these up as real.

The first is something called "Borderline Personality Disorder". It's hard to diagnose, very difficult to treat (so much so, many psychs won't even try) and from those people I know with it, seems to be related to random bursts of hostility and a very high level of denial.

The second is "schizo-effective disorder". This is not schizophrenia, although it is related. It describes a partial split with reality; being aware of what's going on, but simultaneously living in a world that exists only in the person's mind.

Three very common diagnoses for geeks are:

Bipolar disorder: There are 3 main types of bipolar, and 16 different subcategories. This has led some people to suspect that the people working on diagnostic tools have Obsessive Compulsive disorder. Bipolar people tend to work in bursts of high activity, with roughly equal periods of low/no activity. They also tend to drink heavily, as alchohol smooths the ride.

Higher Functioning Autism: Part of the (suspected, yet to be proved) Autism Spectrum. Typically, the person will be extremely brilliant at a very few things. They will be prone to information overload, and often learn quickly to focus on very specific things. They're oblivious to anything outside of that, or near enough. Because they are focussed, and often very passionate about those things they concentrate on, they're hard to get along with. They're often not good at reading body-language, or other subtle non-verbal communication. Likewise, they will often tread on the toes of those who don't comprehend HFA, because the non-verbal signals from an HFA person can be highly confused. Their brain doesn't recognise that type of communication.

Asperger's Syndrome: This is also believed (by some) to be on the Autistic Spectrum, and to be a milder form of HFA. Virtually everything that's true for an HFA is true for an Asperger sufferer, the difference is largely in the degree.

The national average for people with autism of some kind or other is about 1:100. The average in Silicon Valley is about 1:20, some say even 1:10.

I don't believe McBride is Autistic, to any degree. Nor do I believe he is bipolar. This matters only insofar as it means that he doesn't fit the common pattern for geeks or geniuses. In turn, this means he physically cannot comprehend the mindset of those in the industry.

If I am correct in believing him schizo-effective, then this may well explain his lawsuits. He doesn't understand the industry, and his split with reality makes it impossible for him to make rational decisions in response.

This is not an official diagnosis, by any means, but were he to be seen by a competent professional, then that's the conclusion I would expect. If I'm right, then Darl doesn't need to be running a company. Schizo-effective disorders can worsen with stress, so if I'm correct then his mental health will only worsen with the stress of the multitude of lawsuits, the price crash, the increasing suspicion of the media, and the perilously-low turnover.

"The more I read on this the more I wonder wtf is going on. It has long since passed the point of being rational."

It's actually perfectly rational, and rather easy to explain. Just take a look at this line from this interview in CRN [crn.com]:

"David comes on, he's now a shareholder, he's rowing with us, and let's face it, he's added significant value to our company since February. Our stock was around a buck, now it's $14. That's some of the best money we've spent, not even money, some of the best stock we've issued."[Emph Mine]

Look at what SCO has done so far: made a bunch of far-reaching claims and launched a massive lawsuit against IBM. It doesn't matter that the only 'evidence' they've shown so far was debunked as ridiculously overused code that's been out and around publicly since the 80s. It doesn't matter that they haven't been able to substantiate a single claim. None of this matters, because investors are purchasing the stock, hoping for the big pay-off because they don't know that the entire lawsuit is doomed to failure. Daryl took a dying company and got its stock to jump 1400%. That's not to say that Daryl isn't more evil than Bill Gates, (he obviously is), but he's neither insane, nor stupid. It's about the money; it always was. Now he's paying his legal team with stock that was worthless before the claims began, so he's not even dipping into his operating capital. That's just ingenius.

The consequences of this for the technical community serve as an excellent argument for why smart people maybe shouldn't try to escape jury duty...

Precicely. Don't try to 'be smart enough' and weasel out of a civic duty and then complain when those who actually take their citizenship seriously make a decision that you don't like. Then you're just letting stupid people make the rules. This is often exactly what a lawyer wants -- a 'stupid' jury that is incapable of seeing through the bullshit in his/her argument, or of using one's brain and resoning to make a decision.

Smart people 'escaping' jury duty is as absurd as complaining about a particular politician in office when you didn't even bother to vote.

You use your franchise (vote) to make your voice heard in selecting your leaders.

You use the privilege of being on a jury to make your voice heard in the courts. A single Juror can have more power than the Judge and all the lawyers on a case.

Okay, I'm neither a legal expert nor an expert in the history of the AT&T/BSD case, but I thought that the courts DID issue a ruling which was then appealed and that both parties settled out of court before going through with the appeal.

Good point, but as I pointed out a settlement is in this case even stronger than a judgement because the whole point of a settlement is that the parties have agreed to surrender further claims.

An out of court settlement does not set precedent that is binding on other cases. But it is certainly binding on the parties to the case.

The idea that you could somehow avoid the consequences of a prior settlement by selling a copyright claim to another party who would then be free to ignore the settlement is somewhat wierd.

Some people in the business community really are in a different world to anyone that would be reading this. They only associate with people of the same occupation or housewives, and their sources of information are limited to those publications that are seen to be relevant to their occupation. Anything outside their sphere of knowlege is seen as being something you pay others to worry about - something for the "servents", or "too hard". This cultural diffence has persisted for centuries, but the groups that adopt the mindset have shifted. Oddly, very successful managers are usually not in this group, since they generally know what their company actually produces to a degree of detail.

Darl has shown from his comments that he belongs to this insular group. Silly little games like the greek character obfiscation at his presentation: He appeared to be saying - this technical stuff is all greek to me, ha ha ha. Things like that show the contempt he has for technical staff. It's the old barbarian/farmer split from days gone past, where the barbarian warlord equally partitions off the land to farmers, and can't work out why some are pissed off that they got swampland.

Darl has shown signs of the clueless end of business culture (far divorced from the company actually doing anything) but it is making him money so it is not clueless to him. I can't see this ending well, without more regulation even more outlandish scams will become commonplace, more regulation can be used by the unscrupulous against their opponents. There's plenty of people that will just say "look at the stock price!" and consider that all other details are the problems for other people. This is Darl's group, these are the people he associates with, and also the people he "feeds off" to make himself richer. I beleive a description used in the past is "robber baron". Expect lots of appeals to patriotism and various other cheap tricks to come out of his mouth if things get tough for him.

What's so perplexing here? If you are CEO of SCO, what can you do to maximize your income? Assuming that you haven't got much of a product line, how about suing a bunch of companies to see whether (a) the courts will give you a big payout, or (b) the companies will settle to make you go away? Sure, it's a gamble. Is it the worst gamble ever made in business history? Probably not.

The greed explanation clears up quite a few other questions about motivation not easily explained by
appealing to personality disorders or cultural phenomena, such as: (a) why would a law firm elect to go with contingency payments, (b) why would someone finance a loan to this company, and (c) why would anyone buy shares of this company's stock? Are they all bipolar, schizo-whatever, or suffering from business culturitis?

Nah, I think it's just a roll of the dice, hoping to cash in. Personally, I think it's a lousy bet and there's no way I'd buy their stock, but hey, it takes a difference of opinion to make a horse race. Simple explanations are preferable to complex ones.

In the old days, Universities valued their independence from corporate influence. They also valued their status as autonomous free thought zones and would defend this status vigorously. Since many universities have law schools, getting legal support isn't really a problem, there are always alums who will help out alma mater.

But nowadays, universities aren't so independent at all, and they choose not to be. They welcome corporate influence, even to the extent that they utterly depend on it.

University is no longer something that people do because they want an academic life, because they want to do research and pursue knowledge. Today, univerisity is something you have to do if you want to have prospects beyond food service, industrial labor, or retail sales.

Looks to me like SCO are getting more and more frantic, alineating everyone in the industry. Who is actually still _buying_ their crappy UnixWare implemenation? Shouldn't we find out, and publish a "Hall of Shame" with actual SCO customers?